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A Crack in the Wall

A CRACK IN THE WALL SURROUNDING GUN MANUFACTURERS

Recently, the Supreme Court of the United States declined to hear an appeal. In and of itself, such a refusal to take a case is normally not newsworthy because it is so common, but SCOTUS’ denial of this appeal is important for many reasons. The underlying case originated in the aftermath of the horrific tragedy of the Sandy Hook massacre in 2012. Shooter Adam Lanza killed 20 children and 6 faculty members at the Sandy Hook Elementary School in Newtown, Connecticut, using an AR-15 style Bushmaster, made by Remington Arms Company (RAC). A federal law known as the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA) shields firearm and ammunition manufacturers and sellers from liability when their products are used in crimes, but the Sandy Hook families sued RAC over its marketing of the rifle used by Lanza in the massacre.

RAC argued in the lower courts that the federal law, PLCAA, protected it from the lawsuit by the Sandy Hook families. The families argued that the federal law did not protect RAC because they were suing over violations of state marketing laws. The Connecticut courts agreed, including the Connecticut Supreme Court in March 2019. It is from this Court’s opinion that RAC appealed to SCOTUS, and it is this appeal that SCOTUS declined to hear. Now the case heads back to the Connecticut court to proceed to trial.

THE STAKES

The Sandy Hook families are focusing on the Connecticut Unfair Trade Practices Act, a state law not specific to firearms but which applies to anything marketed or sold in Connecticut, and prohibits marketing and sales which encourage violence or criminality. If RAC marketed the AR-15 in such a way, then it violated state law. RAC maintains that the case presents a nationally important question about U.S. gun laws; namely, how to interpret the 2005 PLCAA which grants broad immunity to gun manufacturers like RAC for crimes committed with their products.

The marketing campaign at issue includes such ads for the AR-15 as: the tagline “Consider your man card reissued;” and promotional materials promising “military-proven performance” and the “ultimate combat weapons system” which fostered a “lone-gunman narrative.”

THE DILEMMA

As with any high-profile litigation, the dilemma is whether to settle or go to trial. If RAC settles—and there is no guarantee the Sandy Hook families would agree to a settlement—then other victims of mass shootings could pursue lawsuits against firearms manufacturers and sellers under similar legal theories, creating a tidal wave of litigation. On the other hand, if the case proceeds to trial, the negative publicity surrounding it might be so detrimental to RAC and other gun manufacturers that even if RAC wins, it could end up losing.

THE VICTORY ALREADY WON

Regardless of the strategy ultimately chosen by RAC, the Sandy Hook families may have already scored a victory. With the denial of the appeal and the ability to proceed with the case, the discovery process ensues. Remington Arms Company must open its files and with them potentially damaging emails, memoranda, business plans, corporate strategies, and any other pertinent records it has on how it markets its assault-style weapons to predominantly young, male customers. Just as charges of deceptive marketing practices with respect to Oxycontin and Purdue Pharma were the first cracks in the wall of immunity surrounding Big Pharma, pursuing violations of state laws governing trade and marketing practices might be the way forward toward sensible gun reform.

CONTACT YOUR ATTORNEY

If you or someone you know has been injured in an accident, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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